Griffin v. California
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''Griffin v. California'', 380 U.S. 609 (1965), was a
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case in which the Court ruled, by a 6–2 vote, that it is a violation of a defendant's Fifth Amendment rights for the
prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
to comment to the jury on the defendant's declining to testify, or for the judge to instruct the jury that such silence is evidence of guilt.. The ruling specified that this new extension to defendants' Fifth Amendment rights was binding on all States through the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the Fourteenth Amendment. This "no-comment rule" had already been binding on the federal government's courts because of an 1878 law.


Background of the case

Edward Dean Griffin was convicted of the murder of Essie Mae Hodson before a jury in a
California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
court. Griffin had been invited into an apartment shared by Hodson and her boyfriend, Eddie Seay. After going to bed, Seay was awakened by noise; he saw Griffin and Hodson struggling, and Hodson said Griffin had tried to force her to have sex. After Seay locked Griffin outside the apartment, Griffin broke back into the apartment and struck Seay, who ran to a bar for help. Upon returning, Griffin and Hodson were gone. In the morning, a witness saw Griffin, buttoning up his pants, coming out of a very large trash box in an alley about 300 feet from Hodson's apartment. The witness found Hodson in the trash box, bleeding and apparently in shock. She died at a hospital the next day from her injuries. Griffin, who already had multiple felony convictions, did not testify at the trial. As the U.S. Supreme Court said in its ruling, the prosecutor in the final argument to the jury "made much of the failure of riffinto testify": The judge, in his instructions to the jury, stated that a defendant has a constitutional right not to testify, and that this did not create a presumption of guilt, nor reduce the need for the prosecution to prove its case; but also stated to the jury: This jury instruction was valid under the
California Constitution The Constitution of California ( es, Constitución de California) is the primary organizing law for the U.S. state of California, describing the duties, powers, structures and functions of the government of California. California's original co ...
, whose "comment practice" clause in Article I stated at the time, " any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury." Griffin was convicted and sentenced to the
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
. The
California Supreme Court The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacra ...
affirmed the conviction, and subsequently the U.S. Supreme Court granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
to determine "whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in ''
Malloy v. Hogan ''Malloy v. Hogan'', 378 U.S. 1 (1964), was a case in which the Supreme Court of the United States deemed defendants' Fifth Amendment privilege not to be compelled to be witnesses against themselves was applicable within state courts as well as ...
''."


History and legal background

Until the late 19th century, defendants in criminal trials in the United States were not allowed to testify. Starting in 1864, the States started to allow this practice, until by the end of the 20th century,
Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...
was the only State that still prohibited testimony from the defendant. A new concern was that although under the Fifth Amendment no defendant could be forced to testify, now that testifying was permitted, "the failure of a defendant to testify would be seen as a confession of guilt and that jurors would draw this inference regardless of any instructions they might receive."Griffin, Lissa, p. 935. To help reduce the impact or the likelihood of this inference, the federal government passed a law in 1878 called the "no-comment rule", prohibiting prosecutors from commenting on the failure to testify, and prohibiting any presumption against the defendant based on his failure to testify. (This law is currently .) This federal law applied only to the federal courts, and because of the principle of
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
, the States made their own decisions on this matter. For example, the
California Constitution The Constitution of California ( es, Constitución de California) is the primary organizing law for the U.S. state of California, describing the duties, powers, structures and functions of the government of California. California's original co ...
explicitly permitted counsel and the judge to comment on the failure to testify. In two rulings before ''Griffin'', '' Twining v. New Jersey'' (1908) and '' Adamson v. California'' (1947), the Supreme Court upheld state laws allowing such adverse comments, ruling that even if adverse comments did violate defendants' Fifth Amendment rights, the Fifth Amendment did not bind the States. In ''
Malloy v. Hogan ''Malloy v. Hogan'', 378 U.S. 1 (1964), was a case in which the Supreme Court of the United States deemed defendants' Fifth Amendment privilege not to be compelled to be witnesses against themselves was applicable within state courts as well as ...
'' (1964), the Court reversed this stance, ruling that the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the Fourteenth Amendment extended Fifth Amendment protections against self-incrimination to State trials.


The ruling

Justice Douglas wrote for the Court that a prosecutor's or judge's comment to the jury about a defendant's refusal to testify "is a remnant of the 'inquisitorial system of criminal justice', which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." The Court then noted that an objection to this logic might be that a jury might find it "natural and irresistible" to infer the guilt of a defendant who refused to testify while possessing facts about the evidence against him, and so a judge's commenting upon the refusal did not "magnify that inference into a penalty for asserting a constitutional privilege"; but went on to state that a judge's comment on the refusal "solemnizes the silence of the accused into evidence against him." In a footnote, the Court noted that this ruling was "no innovation", because a majority of the Court had already written in '' Adamson v. California'' (1947) that California's "comment practice" violated the Fifth Amendment. At the time, however, the Court had not yet ruled that the Fourteenth Amendment made the Fifth Amendment applicable to the States.


Justice Harlan's concurrence

Justice Harlan concurred "with great reluctance", agreeing with the Court that "within the federal judicial system the Fifth Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a criminal trial", but writing that this "no-comment" rule was a "non-fundamental" part of the Fifth Amendment, and that he would only apply it to the States because of the previous term's ''
Malloy v. Hogan ''Malloy v. Hogan'', 378 U.S. 1 (1964), was a case in which the Supreme Court of the United States deemed defendants' Fifth Amendment privilege not to be compelled to be witnesses against themselves was applicable within state courts as well as ...
'' decision. (Justice Harlan had dissented from the ''Malloy'' decision, writing that the "compelled uniformity" of applying the Fifth Amendment to the States "carries extremely mischievous, if not dangerous, consequences for our federal system".) Justice Harlan wrote that state and federal courts need not run by the same rules and that cases such as ''Griffin'' showed that the practical tendency had been for the federal judiciary to override the state judiciary, which was contrary to the basic idea of
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
; and that he hoped "that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history."


The dissent

Justice Stewart, joined by Justice White, dissented, writing that the Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself", and that California's "comment rule" did not "compel" the defendant nor anyone else to testify. Also, "the California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts." Justice Stewart wrote that the formulation of such rules "is properly a matter of local concern", and noted that the
American Bar Association The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of acad ...
and the
American Law Institute The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. ...
had endorsed the "comment" practice.


Significance and criticism

In '' Mitchell v. United States'' (1999), the Court extended ''Griffins no-comment rule to the sentencing phase of State trials.
Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...
wrote in his dissent that ''Griffin'' "did not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command", and that "To my mind, ''Griffin'' was a wrong turn – which is not cause enough to overrule it, but is cause enough to resist its extension." This dissent was joined by three other Justices, including Justice Thomas, who added in a separate dissent that ''Griffin'' "lacks foundation in the Constitution's text, history, or logic", and should be overruled outright. A 1980 article in the ''
Michigan Law Review The ''Michigan Law Review'' is an American law review and the flagship law journal of the University of Michigan Law School. History The ''Michigan Law Review'' was established in 1902, after Gustavus Ohlinger, a student in the Law Department ...
'' stated that ''Griffin'' occurred "at the peak of he Supreme Court'senthusiasm to expand the constitutional protections of criminal defendants", and that it has "impaired the effective operation of the criminal justice system", automatically reversing cases where the defendant's silence is mentioned but being a "complete failure to address the much more common situation in which no comment is made by judge or prosecutor but the jury nonetheless concludes that the defendant is guilty because he has nothing to offer in his own defense." ''Great American Court Cases'' wrote that the ''Griffin'' ruling "preserved the presumption of innocence to which a defendant is constitutionally entitled." The
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
had a no-comment rule similar to that established in ''Griffin'', but the rule was reversed in
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
in 1988 as a response to
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terrorism, and later the reversal was extended to
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. Using this reversal as an argument, a 2007 article in the ''William & Mary Bill of Rights Journal'' argued that "''Griffins no-comment rule has never faced a challenge as daunting as that posed by modern domestic
terrorism Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
", and that it is currently "vulnerable" to reversal.


Subsequent events in the case

After the U.S. Supreme Court's reversal of Griffin's conviction, he was tried again for murder, and a mistrial was declared when the jury was deadlocked 2 to 10 in favor of a second-degree murder conviction. In his third trial, the jury found Griffin guilty of first-degree murder and sentenced him to death. Upon automatic appeal (because of the jury's recommendation of the death penalty), the court reversed the trial court's judgment of conviction and imposition of the death penalty.People v. Edward Dean Griffin, 66 Cal.2d 459 (April 25, 1967).


References


External links

* * {{Fifth Amendment crimpro, self, state=expanded Legal history of California United States Fifth Amendment self-incrimination case law United States Supreme Court cases United States Supreme Court cases of the Warren Court 1965 in California 1965 in United States case law